Citation Nr: 1303303
Decision Date: 01/31/13 Archive Date: 02/05/13
DOCKET NO. 11-29 031 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina
THE ISSUE
Entitlement to an increased disability rating for service-connected left tibial stress fracture, currently rated 10 percent disabling.
REPRESENTATION
Veteran represented by: Heather E. VanHoose, Attorney-at-Law
ATTORNEY FOR THE BOARD
R. Anderson, Associate Counsel
INTRODUCTION
The Veteran had active duty service from October 1999 to December 1999 and from February 2005 to July 2005.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in April 2011, a statement of the case was issued in September 2011, and a substantive appeal was received in November 2011.
The Veteran requested and was scheduled for a hearing before a Decision Review Officer in August 2011 at the RO. However, the Veteran canceled the hearing in lieu of an additional VA examination. The Veteran also requested and was scheduled for a Board hearing via videoconference in February 2012. However, he failed to appear for the scheduled hearing, and he has not requested that the hearing be rescheduled. Therefore, the Veteran's hearing request is considered to have been withdrawn. See 38 C.F.R. § 20.704(d) (2012).
The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. There are currently no pertinent records in the paperless file that are not also in the paper claims file.
FINDINGS OF FACT
The Veteran's service-connected left tibial stress fracture disability does not result in limitation of flexion to 30 degrees or less; there is no limitation of extension, recurrent subluxation, lateral instability, or nonunion or malunion of the tibia.
CONCLUSION OF LAW
The criteria for entitlement to a rating in excess of 10 percent for the Veteran's service-connected left tibial stress fracture disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002).
These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004).
Duty to Notify
After reviewing the claims folder, the Board finds that the Veteran has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefit currently sought. In a letter dated in December 2010, the Veteran was informed of the information and evidence necessary to warrant entitlement to the benefit sought. In addition, he was advised of the types of evidence VA would assist him in obtaining, as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio, 16 Vet. App. 183; Charles v. Principi, 16 Vet. App. 370 (2002). This letter was sent to the Veteran prior to the February 2011 RO rating decision giving rise to this appeal; therefore, the VCAA notice in this case was timely. See Pelegrini, 18 Vet. App. 112.
The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Further, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).
Duty to Assist
The Board finds that the VA complied with the assistance provisions set forth in the law and regulations. All available pertinent records, including in-service, private, VA, and social security records have been obtained. The Veteran was afforded VA examinations to evaluate his disability in January and September 2011. All pertinent VA examination reports are of record and contain sufficiently specific clinical findings and informed discussion of the pertinent features of the disability on appeal to provide probative medical evidence adequately addressing the issue decided below. No additional pertinent evidence has been identified by the Veteran as relevant to this appeal. In particular, there is no argument or indication that the disability has increased in severity since the last medical evaluation of record. Under these circumstances, no further action is necessary to assist the Veteran with this appeal. As such, the Board finds that the record, as it stands, includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4).
Analysis
The Veteran is seeking an increased rating for his service-connected left tibial stress fracture disability. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.
In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Therefore, the analysis below is undertaken with consideration of the possibility that different ratings may be warranted for different time periods.
It should also be noted that when evaluating a disability of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.
Here, the Veteran's service-connected disability for left tibial stress fracture (or left knee disability) has been assigned a 10 percent rating under Diagnostic Code (DC) 5260 for limitation of flexion. In order to warrant the next higher rating of 20 percent under Code 5260, the evidence must show that the limitation of flexion is to 30 degrees. It is noted that normal knee flexion and extension is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II.
At the January 2011 examination, the Veteran complained of constant left knee pain, rated as a 5 on a scale of 10, which he said was aggravated by prolonged sitting and walking. He also complained of locking, instability, swelling, and difficulty using stairs and climbing ladders. In addition, he stated that his knee pain caused him to miss work, disrupts his sleep, and that he wears a knee brace at work. The January 2011 examiner found that the Veteran's range of motion in the left knee was from 0 degrees of full extension to 90 degrees of flexion, pain free, and up to 110 degrees of flexion with pain, but with no decrease due to pain or fatigue following repetitive motion. The examiner found some tenderness to palpation at the anterior aspect of the left tibial plateau and around the mid left tibia. There was no indication of erythema, joint effusion, or swelling, and the McMurray's test was negative. There was also no ligamentous laxity or crepitus.
During a subsequent September 2011 VA examination, the Veteran complained of constant, dull, stabbing pain in the left knee, in addition to subjective locking, instability, and swelling. The Veteran stated that the locking occurred "numerous times" and that the instability was "here and there," stating that he wears a brace for medial and lateral support. He also reported swelling 2-3 times per month and that he has difficulty climbing ladders at work and with prolonged driving. The Veteran reported daily flare-ups that can last for several hours at a time, resulting in increased pain and occasional instability that are improved with medication. In addition, the Veteran stated that he had been scheduled for a diagnostic arthroscopy at the VA clinic, but that it was not performed.
The September 2011 VA examiner found that the Veteran had full pain free knee extension to 0 degrees and flexion to 130 degrees, and that this was a pain free arc of motion that was not limited by repetition. In addition, the Veteran had normal Lachman's, drawer, and varus and valgus stress tests. There was no tenderness to palpation of the medial or lateral joint lines, and no crepitus or effusion. He also had a negative McMurray's test. The examiner also reviewed x-rays and an MRI, which did not show any bony abnormalities. The MRI showed mild degenerative medial meniscus pathology, but the ligamentous anatomy was normal and there were no tears. The examiner concluded that the Veteran's flexion was limited by about 5 degrees and that there was degenerative medial meniscus pathology, but no evidence of ligamentous instability.
The January and September 2011 VA examination reports are consistent with the Veteran's VA treatment records during the appeal period.
Shortly before the period on appeal, in August 2009, the Veteran had similar complaints to those currently on appeal. The VA provider documented that his range of motion was 0 degrees extension and 130 degrees of flexion with negative Lachman's test. An MRI found no tears. As a result of the evaluation and consultation with the healthcare provider, the Veteran expressed an interest in pursuing a diagnostic arthroscopy. The arthroscopy was scheduled in September 2009; however, the Veteran canceled the procedure apparently due to a scheduling conflict, and there is no indication of record that the arthroscopy was later performed. This is consistent with the September 2011 VA examination, in which the Veteran reported canceling the arthroscopy.
In April 2010, the Veteran complained of left knee pain which he rated as a 4 on a scale of 10. The healthcare provider found that the Veteran had suprapatellar bursitis of the left knee with suprapatellar effusion and mild inflammation of the infrapatellar space. The Veteran was prescribed hot and cold packs, a knee brace, and medication to include diclofenac and tramadol.
In May 2010, the Veteran complained of left knee pain and rated it as 7 out of 10, stating that he felt it was going to give-way, pop or snap when climbing up a ladder or steps. The healthcare provider noted that the Veteran had bursitis and prescribed capsaicin cream and methocarbamol to help with pain and relaxation of the muscles at night. A May 2010 x-ray of the left knee was negative with no effusions.
A January 2011 VA treatment record (a few days before the VA examination) notes the Veteran's complaints of pain. An MRI was noted to show mild degenerative changes, but no tears of either meniscus, and normal appearance of ligaments.
After reviewing the record, the Board concludes that the preponderance of the evidence is against entitlement to a rating in excess of the current 10 percent. As noted earlier, to warrant a 20 percent rating under Code 5260 there would have to be persuasive evidence that flexion is limited to 30 degrees or less. The examination reports clearly show that there is only minimal limitation of flexion, even when the DeLuca factors are considered.
The Veteran was documented as having up to 130 degrees of flexion in his left knee without pain in both his September 2011 VA examination and August 2009 VA treatment records. Even considering the January 2011 VA examination, in which the Veteran was limited to 90 degrees of flexion without pain, but 110 degrees with pain, that limitation does not meet the criteria for a rating in excess of 10 percent. .
In the present case the Veteran was granted the minimum compensable rating of 10 percent based on painful motion with some minimal limitation of motion. 38 C.F.R. §§ 4.10, 4.45, and 4.59. Where there is arthritis with otherwise noncompensable limitation of motion, a 10 percent rating is warranted. Code 5003. This accounts for the currently assigned rating, but a higher rating is not warranted based on the evidence. Moreover, separate ratings for limitation of extension and/or recurrent subluxation or lateral instability are not warranted since the evidence clearly shows that the knee disability is not productive of such symptomatology.
The Board has considered the Veteran's reported feelings of instability. Under DC 5257, a 10 percent rating will be assigned for slight recurrent subluxation or lateral instability; a 20 percent rating requires moderate recurrent subluxation or lateral instability; and a 30 percent rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. With regard to instability, the Veteran is competent to report feeling a sensation of instability. However, trained medical examiners, with full knowledge of the Veteran's subjective complaints, have reported that all appropriate testings has shown no lateral instability. The Board finds that the findings of the examiners are persuasive.
The Board notes that some of the Veteran's reported symptoms can sometimes be indicative of dislocated semilunar cartilage (or meniscus). See 38 C.F.R. § 4.71a, DC 5258 (providing for a 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint). However, there is no indication of dislocated meniscus in the medical records. More specifically, a January 2011 VA provider and the September 2011 VA examiner noted that an MRI showed mild degenerative medial meniscus, but no discrete tears that communicate with the articular surfaces of the menisci.
As the Veteran's disability is characterized as stress fracture of the tibia, the Board has also considered whether application of DC 5262, which addresses impairment of the tibia and fibula, is appropriate. See 38 C.F.R. § 4.71a (providing for ratings of 10, 20, and 30 percent for malunion with slight, moderate, and marked knee or ankle disability; and 40 percent with nonunion with loose motion requiring brace). The Veteran has reported wearing a brace due to perceived instability of the knee. However, x-rays have repeatedly shown no bony abnormalities and normal alignment, including in May 2010 and September 2011. Consequently, there is no evidence of impairment of the tibia, to include malunion or nonunion.
In summary, the Veteran is not entitled to a rating in excess of 10 percent for his left tibial stress fracture disability.
Increased Rating Conclusion and Extraschedular Consideration
The Board acknowledges that the Veteran believes that his disability on appeal is more disabling than the assigned disability rating reflects. As such, the Board has carefully considered the Veteran's contentions since he is competent to describe complaints such as the frequency and nature of symptoms like pain, discomfort, and perceivable interference with activities. However, as discussed above, the medical evidence outweighs the Veteran's reported symptoms. Accordingly, the preponderance of the evidence does not support an increased rating in this case.
The Board also recognizes that the Veteran and the record refer to the impact of the service-connected disability on his functioning, to include employment. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1).
The threshold criteria for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors such as marked interference with employment or frequent periods of hospitalization, so as to render impractical application of regular schedular standards. Id. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all evidence of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe a veteran's disability level and symptomatology. Id. at 115. If the schedular rating criterion reasonably describes a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops.
If the RO or the Board finds that the schedular evaluation does not contemplate a veteran's level of disability and symptomatology, then either the RO or the Board must determine whether a veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id.
In this case, the symptoms described by the Veteran fit squarely within the criteria found in the relevant diagnostic codes for the disabilities at issue. The Veteran essentially complains of pain and painful limitation of motion with subjective complaints that his knee gives way. In short, the rating criteria contemplate not only his symptoms but the severity of his disability. For these reasons, referral for extraschedular consideration is not warranted.
The Board has further considered whether a claim for a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU) has been raised by the record. When evidence of unemployability is submitted during the course of an appeal from a rating assigned for a disability, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the record reflects that the Veteran has been employed full-time at all times during the course of this appeal. Moreover, he has not claimed to be unemployable due to his left knee disability. Although the Veteran previously filed a claim for Social Security Disability benefits, that claim was denied. As such, a claim for a TDIU is not raised by the evidence of record and need not be addressed at this time.
In conclusion, the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's left tibial stress fracture disability. As such, the benefit of the doubt doctrine does not apply and the Veteran's claim must be denied.
ORDER
A rating in excess of 10 percent for left tibial stress fracture is not warranted. The appeal is denied.
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ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs